Read the Campaign and Election Security Policy: Overview and Recent Developments for Congress

Campaign and Election Security Policy:

Overview and Recent Developments

for Congress

January 2, 2020

Congressional Research Service

https://crsreports.congress.gov

R46146

 

 

 

Congressional Research Service

SUMMARY

 

Campaign and Election Security Policy: Overview and Recent Developments for Congress In the United States, state, territorial, and local governments are responsible for most aspects of

selecting and securing election systems and equipment. Foreign interference during the 2016

election cycle—and widely reported to be an ongoing threat—has renewed congressional

attention to campaign and election security and raised new questions about the nature and extent

of the federal government’s role in this policy area.

This report provides congressional readers with a resource for understanding campaign and

election security policy. This includes discussion of the federal government’s roles; state or

territorial responsibilities for election administration and election security; an overview of

potentially relevant federal statutes and agencies; and highlights of recent congressional policy

debates. The report summarizes related legislation that has advanced beyond introduction during

the 116th Congress. It also poses questions for consideration as the House and Senate examine

whether or how to pursue legislation, oversight, or appropriations.

In the 116th Congress, the FY2020 National Defense Authorization Act (NDAA; S. 1790; P.L. 116-92), enacted in December

2019, contains several provisions related to campaign and election security. Most provisions involve providing Congress or

federal or state agencies with information about election interference. It also requires the Director of National Intelligenc e, in

coordination with several other agencies, to develop a strategy for countering Russian cyberattacks against U.S. elections. In

addition, the Consolidated Appropriations Act, 2020 (P.L. 116-93; H.R. 1158), also enacted in December 2019, includes

$425 million for payments to states, territories, and the District of Columbia to make general improvements to the

administration of federal elections, including upgrades to election technology and security.

As of this writing, 116th Congress legislation that has advanced beyond introduction in at least one chamber includes H.R. 1;

H.R. 753; H.R. 1158; H.R. 2500; H.R. 2722; H.R. 3351; H.R. 3494; H.R. 3501; H.R. 4617; H.R. 4782; H.R. 4990; S. 482; S.

1060; S. 1321; S. 1328; S. 1589; S. 1790; S. 1846; S. 2065; and S. 2524. Other bills also could have implications for

campaign and election security even though they do not specifically reference the topic (e.g., those addressing cybersecurity

generally or voter access). Several congressional committees also have held legislative or oversight hearings on the topic.

Federal statutes—such as the Help America Vote Act (HAVA); Federal Election Campaign Act (FECA); and the Voting

Rights Act (VRA)—all contain provisions designed to make campaign finance, elections, or voting more secure. Several

federal agencies are directly or indirectly involved in campaign and election security. These include, but are not limited to,

the Department of Defense (DOD); Department of Homeland Security (DHS); Department of Justice (DOJ); Election

Assistance Commission (EAC); and Federal Election Commission (FEC).

Securing federal elections is a complex policy challenge that crosses disciplinary lines. Some of the factors shaping that

complexity include divisions of authority between the federal and state (or territorial or local) governments; coordination

among federal agencies, and communication with state agencies; funding; changing elections technology; and the different

needs of different sectors, such as campaigns, administrators, and vendors.

This report does not attempt to resolve ongoing policy debates about what campaign and election security should entail. The

report cites other CRS products that contain additional discussion of some of the topics discussed herein. The report does not

address constitutional or legal issues.

 

R46146

January 2, 2020

R. Sam Garrett, Coordinator Specialist in American National Government

Sarah J. Eckman Analyst in American National Government

Karen L. Shanton Analyst in American National Government

 

 

 

Campaign and Election Security Policy: Overview and Recent Developments for Congress

 

Congressional Research Service

Contents

Introduction ……………………………………………………………………………………………………………………. 1

Defining Election Security ………………………………………………………………………………………….. 2

Scope of the Report …………………………………………………………………………………………………………. 3

Recent Legislative Activity ………………………………………………………………………………………………. 4

Development of Federal Role in Campaign and Election Security …………………………………………. 5

Selected Federal Statutes ………………………………………………………………………………………………….. 7

Selected Federal Agencies ………………………………………………………………………………………………. 10

Election Assistance Commission (EAC) ……………………………………………………………………… 10 Federal Election Commission (FEC) …………………………………………………………………………… 11 Department of Homeland Security (DHS) ……………………………………………………………………. 11 Department of Justice (DOJ) ………………………………………………………………………………………. 11 Intelligence Community (IC) …………………………………………………………………………………….. 12 Selected Other Federal Agencies………………………………………………………………………………… 12 Coordination By and Among Selected Federal Agencies ………………………………………………. 13

Department of Homeland Security Coordination Roles …………………………………………… 14 Election Assistance Commission Coordination Roles ……………………………………………… 15 Intelligence Community Coordination Roles …………………………………………………………. 15 Coordination Roles and Selected Other Federal Agencies ……………………………………….. 16

Federal Agency Roles and Campaign Security …………………………………………………………….. 16

Federal Election Security Guidance …………………………………………………………………………………. 17

Federal Funding for Securing Election Systems ………………………………………………………………… 18

Funding for States After the 2016 Election Cycle …………………………………………………………. 18 Funding for Federal Agencies After the 2016 Election Cycle …………………………………………. 19

State and Local Role in Election Security …………………………………………………………………………. 20

Selected Recent Policy Issues for Congress ………………………………………………………………………. 22

Concluding Observations ……………………………………………………………………………………………….. 28

 

Tables

Table 1. 116th Congress Legislation, Which Has Passed At Least One Chamber, Related

to Campaign and Election Security …………………………………………………………………………………. 4

Table 2. Selected Statutes Potentially Relevant for Campaign and Election Security ……………….. 8

Table 3. Selected Agency Roles in Campaign and Election Security …………………………………….. 13

Table 4. Selected Recent Policy Issues Related to Campaign and Election Security ……………….. 23

 

Appendixes

Appendix. Legislation Related to Campaign and Election Security That Has Advanced

Beyond Introduction, 116th Congress …………………………………………………………………………….. 30

 

 

 

Campaign and Election Security Policy: Overview and Recent Developments for Congress

 

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Contacts

Author Information ………………………………………………………………………………………………………… 37

 

 

 

Campaign and Election Security Policy: Overview and Recent Developments for Congress

 

Congressional Research Service 1

Introduction Election security is one of the most prominent policy challenges facing Congress. A November

2019 warning from the heads of several federal agencies illustrates the interdisciplinary and

ongoing nature of the threat to American elections. According to the joint statement, in the 2020

election cycle, “Russia, China, Iran, and other foreign malicious actors all will seek to interfere in

the voting process or influence voter perceptions. Adversaries may try to accomplish their goals

through a variety of means, including social media campaigns, directing disinformation

operations or conducting disruptive or destructive cyber-attacks on state and local

infrastructure.”1

These are just the latest challenges in securing American elections. Traditionally, election

administration emphasizes policy goals such as ensuring that all eligible voters, and only eligible

voters, may register and cast ballots; that those ballots are counted properly; and that the voting

public views that process as legitimate and transparent. Preserving election continuity is a chief

concern. Election officials therefore have long prepared contingency plans that address various

risks, such as equipment malfunctions, power outages, and natural disasters.

These traditional concerns remain, but have taken on new complexity amid foreign interference in

U.S. elections. In addition to managing traditional security concerns about infrastructure and

administrative processes (e.g., counting ballots), mitigating external threats to the accuracy of

information voters receive, particularly from foreign sources, is a potential challenge for political

campaigns, election administrators, and the public.

Addressing any one of these topics might involve multiple areas of public policy or law. Doing so

also can involve complex practical challenges about which levels of government, or agencies, are

best equipped or most appropriate to respond. How those entities can or should interact with

political campaigns, the private sector, and voters, are also ongoing questions. Technical

complexity in some areas, such as cybersecurity, and the federal structure of shared national, state

or territorial, and local responsibility for administering federal elections make election security

even more challenging.

Election security in general appears to be a shared policy goal, but debate exists in Congress

about which policy issues and options to pursue. Debate over the scope of the federal

government’s role in election security shapes much of that debate. State, territorial, and local

governments are responsible for most aspects of election administration, including security.

This report provides congressional readers with an overview that includes

 how campaign and election security has developed as a policy field;

 recent legislative activity, especially bills that have advanced beyond introduction;

 federal statutes and agencies that appear to be most relevant for campaign and election security;

 state, territorial,2 or local roles in administering elections, and federal support for those functions; and

1 U.S. Department of Justice et al., “Joint Statement from DOJ, DOD, DHS, DNI, FBI, NSA, and CISA on Ensuring

Security of 2020 Elections,” press release, November 5, 2019, at https://www.nsa.gov/news-features/press-room/

Article/2009338/joint-statement-from-doj-dod-dhs-dni-fbi-nsa-and-cisa-on-ensuring-security-of-2/.

2 In general, campaign and election security policy matters are similar in states and territories, although specific statutes

 

 

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 highlights of recent policy debates, and potential future questions for congressional consideration.

Defining Election Security

There is no single definition of “election security,” nor is there necessarily agreement on which

topics should or should not be included in the policy debate. Broadly speaking, election security

involves efforts to ensure fair, accurate, and safe elections. This can include a variety of activities

that happen before, during, and after voters cast their ballots.

 A narrow definition of election security might address only efforts to protect traditional election infrastructure, such as voter registration databases, voting

machines, polling places, and election result tabulations.

 More expansive definitions might also address issues affecting candidates and campaigns. This includes, for example, regulating political advertising or

fundraising; providing physical or cybersecurity assistance for campaigns; or

combating disinformation or misinformation in the political debate.

The policy debates discussed herein can affect different kinds of entities uniquely.

 Perhaps most notably, security concerns affecting campaigns can differ from those for safeguarding elections and voting. Campaigns in the United States

are about persuading voters in an effort to win elections. They are private,

not governmental, operations and are subject to relatively little regulation

beyond campaign finance policy.

 Elections are more highly regulated, although specific practices can vary, as their administration is primarily a state- or local-level responsibility.

 Provisions in state or local law, and, to a lesser degree, federal law, regulate how voters cast ballots and who may do so. Some security discussions

include issues related to voter access, while others view access as a separate

elections policy matter. This report briefly notes that access can be a

component of campaign and election security policy debates, but the report

does not otherwise address access issues.3

This report does not attempt definitively to resolve ongoing policy debates about what campaign

and election security entails or should entail, nor does it fully address all aspects of the policy

issues discussed. Instead, it provides congressional readers with background information to

consider that debate and decide whether or how to pursue legislation (including appropriations) or

distinguish between states and territories in some cases. A discussion of how federal election law applies to territories

versus states is beyond the scope of this report. Unless otherwise noted, campaign and election security concerns

discussed in the text of this report are relevant for territories.

3 Because voter access is primarily a state-level responsibility, this report does not address the topic in detail, although

it does address some Voting Rights Act provisions. For 116th Congress discussion of access issues, see, for example,

U.S. Congress, House Committee on House Administration, Subcommittee on Elections, Report on Voting Rights and

Election Administration in the United States of America, prepared by Chairperson Marcia L. Fudge, 116th Cong., 1st

sess., at https://cha.house.gov/report-voting-rights-and-election-administration-united-states-america, which includes

discussion of misinformation issues that are potentially relevant for election security; and U.S. Congress, House

Committee on House Administration, Subcommittee on Elections Voting Rights Act Findings: Minority Views, 116th

Cong., 1st sess., at https://republicans-cha.house.gov/voting-rights-act-minority-views. Both documents are undated and

were released in 2019. See also, for example, House debate on H.R. 4, “Voting Rights Advancement Act of 2019,”

House debate, Congressional Record, daily edition, December 6, 2019, pp. H9308-H9334. Most issues related to H.R.

4 do not specifically address campaign and election security and are thus beyond the scope of this report.

 

 

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oversight. Because all the topics noted above—and others discussed throughout the report—have

been components of the recent congressional debate over how to safeguard American campaigns,

elections, and voting, this report uses the general term campaign and election security.

Scope of the Report This report discusses federal agencies, statutes, and policies designed to prevent or respond to

deliberate domestic or foreign security threats to campaigns, elections, or voting. Concepts

discussed in the report also have implications for some unintentional threats, such as natural

disasters or other emergencies that could affect campaigns, elections, or voting. Legislation cited

in the report contains specific references to campaign and election security. This includes bill text

that uses variations of terms such as campaign, election, or vote near variations of the terms

interference or security. Some readers might view areas addressed herein as more or less directly

related to campaign or election security, and alternative methodologies could yield other bills or

policy topics for consideration.

The report does not include detailed attention to more traditional aspects of campaign finance,

election administration, or voting, particularly voter mobilization. For example, the report

discusses Help America Vote Act provisions that authorize funding states may use to help secure

elections, but not provisions that authorize funding for the Election Assistance Commission

generally.4 Similarly, the report briefly discusses Voting Rights Act provisions that prohibit voter

intimidation, but it does not discuss other federal statutes enacted to make registration and voting

easier.5 In addition, the report briefly notes lobbying statutes that might be relevant for regulating

certain corporate or foreign activity related to U.S. election interference, but it does not

substantially address lobbying as a policy area.

The report emphasizes domestic implications of campaign and election security. This includes

attention to protections for U.S. campaigns and elections from the effects of foreign

disinformation and misinformation efforts. The Appendix at the end of this report includes

sanctions or immigration legislation that specifically references interference in U.S. elections, and

which has advanced beyond introduction during the 116th Congress. However, foreign policy

implications of such interference, or a discussion of offensive operations and tactics that the

United States might or might not use against foreign adversaries, are otherwise beyond the scope

of this report.6

Because of the still-developing and complex policy challenges surrounding campaign and

election security, other areas of law, policy, or practice might also be relevant but are not

addressed here. The report references other CRS products that contain additional discussion of

4 Similarly, the report does not address funds for aspects of election security other than securing election systems, such

as Intelligence Community efforts to identify sources of election disinformation.

5 Other CRS products contain additional discussion. See, for example, CRS Report R45302, Federal Role in U.S.

Campaigns and Elections: An Overview, by R. Sam Garrett; CRS Report RS20764, The Uniformed and Overseas

Citizens Absentee Voting Act: Overview and Issues, by R. Sam Garrett (originally authored by Kevin J. Coleman); and

CRS Report R45030, Federal Role in Voter Registration: The National Voter Registration Act of 1993 and Subsequent

Developments, by Sarah J. Eckman.

6 For additional discussion of foreign policy implications and key concepts, see CRS Report R45142, Information

Warfare: Issues for Congress, by Catherine A. Theohary; and CRS In Focus IF10771, Defense Primer: Information

Operations, by Catherine A. Theohary; CRS In Focus IF10694, Countering America’s Adversaries Through Sanctions

Act, by Dianne E. Rennack, Kenneth Katzman, and Cory Welt; CRS In Focus IF10779, U.S. Sanctions on Russia: An

Overview, by Dianne E. Rennack and Cory Welt; CRS Report R45415, U.S. Sanctions on Russia, coordinated by Cory

Welt; and CRS In Focus IF10694, Countering America’s Adversaries Through Sanctions Act, by Dianne E. Rennack,

Kenneth Katzman, and Cory Welt.

 

 

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several such topics. The report does not provide legal or constitutional analysis. It also does not

attempt to catalog all alleged or established instances of campaign and election interference or

security concerns, or to independently evaluate allegations.

Recent Legislative Activity Highlights of recent legislative activity include the following. Additional discussion appears

throughout the report.

 The 115th Congress (2017-2019) appropriated $380 million for FY2018 for improvements to the administration of federal elections, including upgrades to

election technology and security.

 The 116th Congress (2019-2021) appropriated $425 million for FY2020 in the consolidated appropriations bill (H.R. 1158; P.L. 116-93) enacted in December

2019. The “Funding for States After the 2016 Election Cycle” section of this

report contains additional detail.

 The 116th Congress enacted S. 1790 (P.L. 116-92), the FY2020 National Defense Authorization Act (NDAA), in December 2019. The legislation contains several

provisions related to campaign and election security.

Table 1 below lists bills that have passed at least one chamber. The Appendix in this report

briefly summarizes 116th Congress legislation containing campaign and election security

provisions that has advanced beyond introduction.

Table 1. 116th Congress Legislation, Which Has Passed At Least One Chamber,

Related to Campaign and Election Security

See the “Scope of the Report” section and the Appendix of this report for additional detail.

Bill Number Short Title Latest Major Action

H.R. 1 For the People Act of 2019

 

Passed House (234-193),

03/08/2019

H.R. 753 Global Electoral Exchange Act of 2019 Passed House (voice

vote), 05/20/2019

H.R. 1158 Consolidated Appropriations Act, 2020 Became P.L. 116-93,

12/20/2019

H.R. 2500 National Defense Authorization Act for Fiscal

Year 2020

Passed House (220-197),

07/12/2019

 

H.R. 2722 Securing America’s Federal Elections (SAFE) Act Passed House (225-184),

06/27/2019

H.R. 3351 Financial Services and General Government

Appropriations Act, 2020

Passed House (224-196),

06/26/2019; see also H.R.

1158

H.R. 3494 Damon Paul Nelson and Matthew Young Pollard

Intelligence Authorization Act for Fiscal Years

2018, 2019, and 2020

Passed House (397-31),

07/17/2019

H.R. 4617 Stopping Harmful Interference in Elections for a

Lasting Democracy Act (SHIELD Act)

Passed House (227-181),

10/23/2019

 

 

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Bill Number Short Title Latest Major Action

S. 1321 Defending the Integrity of Voting Systems Act Passed Senate (unanimous

consent), 07/17/2019

S. 1328 Defending Elections against Trolls from Enemy

Regimes (DETER) Act

Passed Senate (unanimous

consent), 06/03/2019

S. 1790 National Defense Authorization Act for Fiscal

Year 2020

Became P.L. 116-92,

12/20/2019

S. 1846 State and Local Government Cybersecurity Act

of 2019

Passed Senate (unanimous

consent), 11/21/2019

Source: CRS analysis of bill texts.

Notes: Bills in the table specifically reference campaign and election and security. Other legislation not included

in the table could be relevant for campaign or election security once implemented or in practice. See the “Scope

of the Report” section of this report and the Appendix for additional detail. The table excludes resolutions

(e.g., proposed constitutional amendments) and routine appropriations bills that propose funding for agencies

such as the Election Assistance Commission or Federal Election Commission, unless the appropriations bill also

contains additional provisions specifically addressing campaign and election security.

 In addition, during the 116th Congress, committees in both chambers have held hearings on these and related campaign and election security topics.7 The

Committee on House Administration and Senate Committee on Rules and

Administration exercise primary jurisdiction over federal elections. Several other

committees oversee related areas, such as intelligence or voting rights issues.

Another CRS product contains additional discussion of committee roles in

federal campaigns and elections generally.8

Development of Federal Role in Campaign and

Election Security Foreign interference is only the highest-profile and latest campaign and election security policy

challenge.9 Physical security, to protect voters, ballots, and vote counts, has been an ongoing

7 See, for example, U.S. Congress, Senate Select Committee on Intelligence, Russian Active Measures Campaigns and

Interference in the 2016 U.S. Election, Volume 1: Russian Efforts Against Election Infrastructure with Additional

Views, 116th Cong., 1st sess., July 25, 2019, at https://www.intelligence.senate.gov/sites/default/files/documents/

Report_Volume1.pdf; U.S. Congress, Senate Select Committee on Intelligence, Russian Active Measures Campaigns

and Interference in the 2016 U.S. Election, Volume 2: Russia’s Use of Social Media with Additional Views, 116th

Cong., 1st sess., October 8, 2019, at https://www.intelligence.senate.gov/sites/default/files/documents/

Report_Volume2.pdf; U.S. Congress, Senate Committee on Rules and Administration, Oversight of the U.S. Election

Assistance Commission, 116th Cong., 1st sess., May 15, 2019, S. Hrg. 116-74 (Washington: GPO, 2019); U.S. Congress,

House Committee on Homeland Security, Defending Our Democracy: Building Partnerships to Protect America’s

Elections, 116th Cong., 1st sess., February 13, 2019, Serial No. 116-1 (Washington: GPO, 2019); and U.S. Congress,

House Committee on Oversight and Reform, Subcommittee on National Security, Securing U.S. Election Infrastructure

and Protecting Political Discourse, 116th Cong., 1st sess., February 13, 2019, Serial no. 116-28 (Washington: GPO,

2019). See also, for example, discussion and witness testimony presented during an October 22, 2019, House Judiciary

Committee oversight hearing, “Securing America’s Elections Part II: Oversight of Government Agencies.” As of this

writing, the hearing record does not appear to have been published. Video and written materials are available on the

committee website, https://judiciary.house.gov/legislation/hearings/securing-america-s-elections-part-ii-oversight-

government-agencies.

8 See CRS Report R45302, Federal Role in U.S. Campaigns and Elections: An Overview, by R. Sam Garrett.

9 According to the Office of the Director of National Intelligence (ODNI), foreign interference with U.S. elections falls

into “five distinct categories.” Collectively, these include “cyber” or “covert” operations. “Cyber operations” target

 

 

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concern. Specifically, in modern history, the federal government’s first role in securing elections

was primarily about access and voting rights.10 In 1965, Congress enacted the Voting Rights Act

(VRA), which protects voters against race- or color-based discrimination in registration,

redistricting, and voting.11 More explicitly related to security, the VRA prohibits intimidation,

threats, or coercion in voting.12 Congress primarily tasked the U.S. Department of Justice (DOJ)

with enforcing the statute and related criminal provisions. Federal law enforcement agencies,

especially the Federal Bureau of Investigation (FBI), also support states and localities—which

retain primary responsibility for election administration in the United States—in investigating

election crimes and providing physical security at the polls.